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No. 326

November 23, 1998

REVIVING THE PRIVILEGES OR IMMUNITIES CLAUSE

TO REDRESS THE BALANCE AMONG STATES, INDIVIDUALS, AND

THE FEDERAL GOVERNMENT

by Kimberly C. Shankman and Roger Pilon

Executive Summary

Shortly after the Civil War, the American people amend-

ed the Constitution in an effort to better protect individu-

als against state violations of their rights.  Under the

Privileges or Immunities Clause of the new Fourteenth

Amendment, constitutional guarantees against the federal

government could be raised for the first time against state

governments as well.  Although targeted initially against

the "black codes" that were emerging in the postwar South,

the amendment was written broadly to protect all Americans.

But 125 years ago, in 1873, in the infamous Slaughter-

house Cases, a deeply divided Supreme Court effectively

eviscerated the Privileges or Immunities Clause.  Since then

courts have tried to do under the Due Process and Equal

Protection Clauses of the amendment what should have been

done under the more substantive Privileges or Immunities

Clause.  The result has been an erratic and often ground-

less Fourteenth Amendment jurisprudence that has pleased

neither liberals nor conservatives, yet both oppose reviving

the clause.  Liberals tend to favor the latitude judges now

have.  Conservatives fear revival will lead to still more

"judicial activism."

Both sides are wrong.  Conservative "originalists" can-

not ignore the plain language and history of the Privileges

or Immunities Clause.  Liberals need to appreciate that a

properly read and applied clause will better protect indi-

vidual rights.  In the current federalism debate, both sides

should understand that power will be devolved to the states

and the people in a principled way only if the principles

inherent in the Privileges or Immunities Clause are re-

vived--along with the clause itself.

____________________________________________________________

Kimberly C. Shankman is associate professor of politics and

government at Ripon College, Ripon, Wisconsin.  Roger Pilon

holds the B. Kenneth Simon Chair in Constitutional Studies

at the Cato Institute and is the director of Cato's Center

for Constitutional Studies.